Right of States to Regulate in International Investment Law

Name: Right of States to Regulate in International Investment Law | The Search for Balance Between Public Interest and Fair and Equitable Treatment
Brand: Kluwer Law International
Price: 173.99 EUR
Availability: OnlineOnly

The Search for Balance Between Public Interest and Fair and Equitable Treatment

Yulia Levashova(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 18. Juli 2019

320 Seiten

E-Book

ePUB mit Adobe-DRM

Systemvoraussetzungen

978-94-035-1015-6 (ISBN)

173,99 €inkl. 7% MwSt.

Systemvoraussetzungen

für ePUB mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

Due to the ongoing recent expansion of public interest issues worldwide, the state's right to regulate has been recaptured as a prominent concept in international investment law. The fair and equitable treatment (FET) standard provision in the text of an international investment agreement (IIA) has become a detailed clause clarifying the specific obligations of a state towards an investor under the FET standard. However, striking the right balance between the interests of host states and investors in these new treaty formulations has proved to be challenging. This book greatly clarifies the field by offering the in-depth analysis of the application of the state's right to regulate in relation to FET standard provisions in IIAs and to decisions by arbitral tribunals in FET cases. Recognising that the role of tribunals is to balance the state's public interests and the interests of the investor when interpreting and applying the FET standard, the author pursues such seminal issues and topics as the following: the legitimacy of the objective of the state's measure; obligations and responsibilities of investors towards a host state; the nature and impact of a change to a national regulatory framework; special economic and sociopolitical circumstances in a host state; and due diligence and risk assessment as a condition for the protection of an investor's legitimate expectations. Multiple IIAs concluded by the OECD Member States, as well by Russia and China between the developing countries, and the prominent investment law cases on the FET standard are examined in detail. The analysis pays particular attention to how investment jurisprudence in FET cases has been reflected in such new IIAs as the Comprehensive Economic and Trade Agreement between the European Union (EU) and Canada (CETA), the EU-Vietnam FTA and the EU-Singapore FTA. These case studies demonstrate the evolution of the IIAs' FET standard provisions and how they balance the application of the FET standard and the state's right to regulate. Suggestions are provided for drafting formulations of the FET standard that can contribute to achieving such a balance. In the clear light it sheds on the legal conditions under which states may regulate in the public interest and its contribution to the reforms that are currently taking place in the field of international investment law, this book constitutes an exemplary framework to evaluate investment decisions on the FET standard and the right to regulate. It is sure to prove extremely useful for practitioners who work on investment cases, policymakers involved in negotiating and drafting of IIAs, policy advisors of governmental and non-governmental organisations and academics in international investment law.

Weitere Details

Weitere Ausgaben

Inhalt

Intro
Half-Title Page
Title Page
Copyright Page
Table of Contents
Acknowledgements
Chapter 1 Introduction
§1.01 THE FAIR AND EQUITABLE TREATMENT AND THE STATE'S RIGHT TO REGULATE IN CONTEXT
§1.02 THE STATE OF ART ON THE FET AND THE STATE'S RIGHT TO REGULATE IN LEGAL LITERATURE
[A] FET as an Embodiment of (i) The Concept of Justice and (ii) The Rule of Law
[B] FET Standard: The Case Law Approach
[C] Studies on the Right to Regulate in International Investment Law
[D] A Synthesis of the Literature in the Context of This Book
§1.03 METHODOLOGY
Chapter 2 International Investment Agreements and the Right to Regulate: An Introduction
§2.01 INTRODUCTION
§2.02 INTERNATIONAL INVESTMENT AGREEMENTS
§2.03 THE RIGHT TO REGULATE
[A] The Legal Basis of the Right to Regulate
[B] The Right to Regulate in IIAs
[C] The Right to Regulate in FET Investment Cases
[D] The Right to Regulate in Academic Literature
[E] Elements of the Right to Regulate
§2.04 SUMMARY OF THE CHAPTER AND THE INTERIM CONCLUSIONS
Chapter 3 The Fair and Equitable Treatment Standard in International Investment Agreements
§3.01 INTRODUCTION
§3.02 INTRODUCTION OF THE FET STANDARD IN INTERNATIONAL LAW
§3.03 CATEGORIES OF FET STANDARD PROVISIONS IN IIAS
[A] IIAs in Which the FET Standard Is Formulated as an Unqualified Treaty Standard
[B] IIAs in Which the FET Standard Provisions Include a Reference to a Norm of Unwritten International Law
[C] IIAs in Which the FET Standard Provision Is Qualified with Additional Content
[D] IIAs in Which the Preamble Provides a Reference to the FET Standard
[E] IIAs' Additional Agreement of the Parties on the Interpretation of the FET Standard
§3.04 SUMMARY OF THE CHAPTER AND INTERIM CONCLUSIONS
Chapter 4 Investment Jurisprudence on the FET Standard and the Right to Regulate: A General Overview
§4.01 INTRODUCTION
§4.02 THE INTERPRETATION OF THE FET STANDARD UNDER THE GENERAL RULE OF TREATY INTERPRETATION
[A] Ordinary Meaning of the Treaty
[B] Context of the Treaty
[C] Object and Purpose of the Treaty
[D] Subsequent Agreement and Subsequent Practice
§4.03 SUPPLEMENTARY AND SUBSIDIARY MEANS OF INTERPRETATION OF THE FET STANDARD
[A] The Preparatory Work of the Treaty and the Circumstances of Its Conclusion
[B] Previous Decisions of Investment Tribunals
[C] Reliance on Scholarly Writings
[D] Reliance on National Law
[E] Summary: The Interpretation and Application of the FET Standard
§4.04 GENERAL PRINCIPLES OF LAW: THE ROLE OF PROPORTIONALITY AND REASONABLENESS
[A] Proportionality and Reasonableness
[B] Deference and the Margin of Appreciation
§4.05 SUMMARY OF THE CHAPTER AND INTERIM CONCLUSIONS
Chapter 5 Introduction to the Legal Conditions on the Right to Regulate Identified by Tribunals
Chapter 6 The State's Right to Regulate and the Legitimate Expectations of the Investor
§6.01 INTRODUCTION
§6.02 EARLY REFERENCES TO LEGITIMATE EXPECTATIONS IN FET INVESTMENT DECISIONS
§6.03 SPECIFIC REPRESENTATIONS MADE BY THE HOST STATE
[A] Introduction
[B] The Competence of the State Authority
[C] The Legal Force of the Specific Representations: (i) Their Legal Form, (ii) Their Content and (iii) Their Wording
[D] The Designation of the Investor in the State's Representations
[E] Specific Representations Arising from Contractual Commitments
[F] Summary: Defining Specific Representations
§6.04 THE NATURE AND IMPACT OF A CHANGE TO A GENERAL REGULATORY FRAMEWORK
[A] Introduction
[B] Claims Based on the Expectation of the Stability of a General Regulatory Framework
[C] The Level of the Impact on Investments Due to the Transformation of a General Regulatory Framework
[D] The Manner of the Transformation of a General Regulatory Framework by a Host State
[E] Summary: Expectations Concerning the Stability of a General Regulatory Framework
§6.05 THE FACTOR OF SPECIAL ECONOMIC AND SOCIOPOLITICAL CIRCUMSTANCES IN A HOST STATE
[A] Introduction
[B] Economic and Financial Crisis in a Host State
[C] The Sociopolitical and Economic Transition of Former Socialist Countries
[D] The Economic Challenge of an Electricity Tariff Deficit in the Renewable Energy Sector
[E] Summary: The Economic and Socio-political Circumstances in a Host State
§6.06 INVESTOR'S CONDUCT
[A] Introduction
[B] Due Diligence and Risk Assessment
§6.07 SUMMARY OF THE CHAPTER AND INTERIM CONCLUSIONS
Chapter 7 Conditions for a State to Lawfully Exercise Its Right to Regulate
§7.01 INTRODUCTION
§7.02 THE OBJECTIVE OF THE STATE'S MEASURE
[A] Introduction
[B] The Legitimacy of the State's Objectives
[C] Protection of the Environment, Human Rights and Public Health
[D] The Illegitimacy of State Objectives
§7.03 SUMMARY: THE HOST STATE'S OBJECTIVES
§7.04 ASSESSMENT OF THE STATE'S MEASURE
[A] The Principles of Reasonableness, Proportionality and the Prohibition of Arbitrariness in the Assessment of a State's Measure
[1] The Relationship Between a State's Measure and Its Objective
[2] The Possibility of Employing Alternative Measures in Achieving an Objective
[3] Loss Suffered by an Investor as a Consequence of a State's Measure
[B] The Principle of Non-discrimination in the Assessment of a State's Measure
[C] The Principle of Transparency in the Assessment of a State's Measure
[D] Summary: The Assessment of the State's Measure
§7.05 THE LEGALITY OF THE STATE'S MEASURE UNDER NATIONAL LAW
[A] Tribunals' Assessment of the Legality of a State's Measure under National Law
[B] Restrictive Assessment of National Law Violations in the Evaluation of the FET Standard
[C] Criteria for a Violation of the FET Standard by Breaching National Law
[D] Summary: The Legality of a State's Conduct under National Law
§7.06 SUMMARY OF THE CHAPTER AND INTERIM CONCLUSIONS
Chapter 8 Towards a More Balanced Approach
§8.01 INTRODUCTION
§8.02 THE RIGHT TO REGULATE IN INTERNATIONAL INVESTMENT LAW
§8.03 THE IIAS' FET STANDARD PROVISIONS IN CONNECTION WITH THE RIGHT TO REGULATE
§8.04 THE DEVELOPMENT AND INTERPRETATION OF THE FET STANDARD BY INTERNATIONAL ARBITRAL TRIBUNALS
§8.05 THE LEGAL CONDITIONS UNDER WHICH STATES MAY REGULATE IN THE PUBLIC INTEREST
[A] Introduction
[B] Conditions Focusing on the Legitimacy of an Investor's Expectations
[C] Conditions Focusing on the Lawfulness of the State's Measure
§8.06 THE REFLECTION OF FET JURISPRUDENCE IN THE NEW GENERATION OF IIAS
[A] Introduction
[B] The Extent of Codification of FET Investment Jurisprudence in the New Generation of IIAs
[C] The Balance Between the State's Right to Regulate and Investor Protection under the FET Standard in Recent IIAs and Investment Jurisprudence
Annex A: Selected Bilateral Investment Treaties
Annex B: Regional Treaties
Annex C: Categories of the IIAs' FET Standard Formulations
Annex D: Investment Cases
Index
INTERNATIONAL ARBITRATION LAW LIBRARY

Systemvoraussetzungen

Als PDF speichern Als Link merken